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Why All Victims of Extraordinary Rendition Need a Cause of Action Against the United States Peter Johnston

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Why All Victims of Extraordinary Rendition Need a Cause of Action Against the United States Peter Johnston Journal of Law and Policy Volume 16 Issue 1 Article 11 SCIENCE FOR JUDGES IX 2008 Leaving the Invisible Universe: Why All Victims of Extraordinary Rendition Need a Cause of Action Against the United States Peter Johnston Follow this and additional works at: https://brooklynworks.brooklaw.edu/jlp Recommended Citation Peter Johnston, Leaving the Invisible Universe: Why All Victims of Extraordinary Rendition Need a Cause of Action Against the United States, 16 J. L. & Pol'y (2007). Available at: https://brooklynworks.brooklaw.edu/jlp/vol16/iss1/11 This Note is brought to you for free and open access by the Law Journals at BrooklynWorks. It has been accepted for inclusion in Journal of Law and Policy by an authorized editor of BrooklynWorks. JOHNSTON FINAL DRAFT AUTHORIZED.DOC 12/18/07 4:40 PM LEAVING THE INVISIBLE UNIVERSE: WHY ALL VICTIMS OF EXTRAORDINARY RENDITION NEED A CAUSE OF ACTION AGAINST THE UNITED STATES Peter Johnston* INTRODUCTION It begins with the “twenty minute takeout,” as that is all it takes for the victim to be “transformed into a state of almost total immobility and sensory deprivation.”1 The victim, usually in a small room, is quickly blindfolded by four to six Central Intelligence Agency (“CIA”) agents who are “dressed in black like ninjas” with their faces concealed.2 The agents, elite and highly trained, operate pursuant to an established modus operandi and they do not speak to each other.3 The victim is brutally punched, shoved, or firmly gripped, and then his hands and feet are * Brooklyn Law School Class of 2008; B.S.B.A., The University of North Carolina, 2004. The author wishes to thank Professor Wendy Seltzer and the members of the Journal of Law and Policy for their advice and assistance. He also appreciates the work of investigative reporters who help inform their readers about extraordinary rendition. 1 COUNCIL OF EUR., PARLIAMENTARY ASSEMBLY, COMM. ON LEGAL AFFAIRS AND HUMAN RIGHTS, ALLEGED SECRET DETENTIONS AND UNLAWFUL INTER-STATE TRANSFERS OF DETAINEES INVOLVING COUNCIL OF EUROPE MEMBER STATES 22–23 (June 12, 2006), available at http://assembly.coe. int/CommitteeDocs/2006/20060606_Ejdoc162006PartII-FINAL.pdf [hereinafter COUNCIL OF EUROPE JUNE 2006 REPORT]. 2 Id. at 23; see also Dana Priest, Wrongful Imprisonment: Anatomy of a CIA Mistake; German Citizen Released After Months in ‘Rendition,’ WASH. POST, Dec. 4, 2005, at A01 [hereinafter Priest, Wrongful Imprisonment]. 3 COUNCIL OF EUROPE JUNE 2006 REPORT, supra note 1, at 22–23. 357 JOHNSTON FINAL DRAFT AUTHORIZED.DOC 12/18/07 4:40 PM 358 JOURNAL OF LAW AND POLICY shackled.4 All of the victim’s clothes are then methodically cut from his body and he is subject to a full body cavity search.5 Next, the victim is photographed totally or nearly naked, and a foreign object, perhaps a tranquilizer, is forcibly inserted into his anus.6 Then, the victim is dressed in a diaper, has his ears muffled, and a cloth bag, without holes for breathing or detecting light, is placed over his head.7 He is forced into an airplane, where he is placed on a stretcher, shackled, strapped to a seat or mattress, or “laid down on the floor of the plane [bound] up in a very uncomfortable position that makes him hurt from moving.”8 The flight can take up to an entire day, and the destination is either a detention facility operated by a cooperative nation in Central Asia or the Middle East, or one of the CIA’s own covert prisons, called “black sites.”9 If the victim is sent to a black site, he is taken to his cell and his clothes are cut up and torn off.10 He may be kept naked for several weeks, and all he is given is a bowl, a bucket to urinate into, and a blanket that is too small.11 The weather in the cell is controlled to produce temperature extremes: sometimes “freezing cold,” sometimes “so hot one would gasp for breath.”12 The victim never experiences natural light or natural darkness, and he is frequently blindfolded.13 He will likely experience the “four month isolation 4 Id. at 23. 5 Id.; see also Priest, Wrongful Imprisonment, supra note 2. 6 COUNCIL OF EUROPE JUNE 2006 REPORT, supra note 1, at 23–24; see also Priest, Wrongful Imprisonment, supra note 2. 7 COUNCIL OF EUROPE JUNE 2006 REPORT, supra note 1, at 24; see also Priest, Wrongful Imprisonment, supra note 2. 8 COUNCIL OF EUROPE JUNE 2006 REPORT, supra note 1, at 24. 9 Priest, Wrongful Imprisonment, supra note 2. 10 COUNCIL OF EUROPE., PARLIAMENTARY ASSEMBLY, COMM. ON LEGAL AFFAIRS AND HUMAN RIGHTS, SECRET DETENTIONS AND ILLEGAL TRANSFERS OF DETAINEES INVOLVING COUNCIL OF EUROPE MEMBER STATES: SECOND REPORT 51 (June 7, 2007), available at http://assembly.coe.int/CommitteeDocs/ 2007/EMarty_20070608_NoEmbargo.pdf [hereinafter COUNCIL OF EUROPE JUNE 2007 REPORT]. For more details of the conditions of a typical CIA detention cell, see id. at 51–53. 11 Id. at 51–52. 12 Id. at 52. 13 Id. JOHNSTON FINAL DRAFT AUTHORIZED.DOC 12/18/07 4:40 PM LEAVING THE INVISIBLE UNIVERSE 359 regime:” for more than 120 days, he is granted absolutely no contact with human beings other than masked, silent guards.14 Additionally, his cell is subject to constant surveillance by cameras, microphones, and guards.15 There is likely a shackling ring in the wall of the cell, and the victim’s body will be shackled and forced into contorted shapes for “long, painful periods.”16 The victim will be unable to sleep due to relentless noises and disturbances, such as engine noise, loud rock and rap music, cackling laughter, and the screams of women and children.17 Other torture techniques he may experience include “the cold cell,” where the victim is forced to stand naked in a cell kept at about fifty degrees and is continuously doused with cold water, and being forced to stand upright with his wrists and ankles shackled for more than forty hours.18 The victim may also be waterboarded, a technique the United States considered a war crime in the tribunals after Japan’s defeat in World War II.19 Waterboarding is a form of “slow motion drowning” which involves placing cloth over the victim’s face and then pouring water on the cloth, causing the victim to choke or become unconscious because his throat is slowly being filled with water.20 Often the prisoner is strapped onto a board during the 14 Id. 15 Id. 16 COUNCIL OF EUROPE JUNE 2007 REPORT, supra note 10, at 53. 17 Id. 18 Brian Ross & Richard Esposito, CIA’s Harsh Interrogation Techniques Described, ABC NEWS, Nov. 18, 2005, available at http://abcnews.go.com/ WNT/Investigation/story?id=1322866. 19 Walter Pincus, Waterboarding Historically Controversial, WASH. POST, Oct. 5, 2006, at A17; Eric Weiner, Waterboarding: A Tortured History, NATIONAL PUBLIC RADIO, Nov. 7, 2007, available at http://www.npr.org/ templates/story/story.php?storyId=15886834. In 1947, the United States charged Yukio Asano, a Japanese officer, with war crimes because he allegedly waterboarded an American civilian. He was convicted and sentenced to fifteen years of hard labor. Id. 20 Weiner, supra note 19. Another less common form of waterboarding involves pumping water directly into the stomach of the victim, creating intense pain and a feeling like the victim’s “organs are on fire.” Id. JOHNSTON FINAL DRAFT AUTHORIZED.DOC 12/18/07 4:40 PM 360 JOURNAL OF LAW AND POLICY process.21 The victim’s gag reflex inevitably kicks in and he experiences a “terrifying fear of drowning.”22 Waterboarding is an attractive technique to some because it causes great physical and mental suffering without leaving any marks on the victim.23 The process described above is not a horror movie, conspiracy theory, or set of allegations. It is a real practice created and executed by the United States of America.24 It is called “extraordinary rendition,” and it has happened to hundreds of people.25 For purposes of this Note, extraordinary rendition is defined as “the transfer of an individual, with the involvement of the United States or its agents, to a foreign state where there are substantial grounds for believing the person would be in danger of being subjected to torture.”26 Extraordinary rendition includes situations in which the victim is transferred to a foreign state but is still in the custody of United States agents. It is one type of extra-legal transfer employed by the United States in the so-called “War on Terror.”27 By contrast, “regular” rendition is a process in which an 21 See id.; Ross & Esposito, supra note 18. 22 Ross & Esposito, supra note 18. 23 Weiner, supra note 19. 24 CIA Chief Backs Rendition Flights, BBC NEWS, Oct. 31, 2007, available at http://news.bbc.co.uk/2/hi/americas/7070483.stm [hereinafter CIA Chief Backs Rendition Flights]; COUNCIL OF EUROPE JUNE 2007 REPORT, supra note 10, at 3. 25 COUNCIL OF EUROPE JUNE 2006 REPORT, supra note 1, at 2. 26 The “substantial grounds” standard is the same standard employed in the Foreign Affairs Reform and Restructuring Act of 1998: [I]t shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States. Pub. L. No. 105-277, div. G, Title XXII, § 2242. 27 See Margaret L.
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